Alexander M. Ostroff

The appellant was convicted of sexual assault and assault against his former wife.

He appealed on the narrow ground that the trial judge erred in refusing to allow the defence to pursue additional electronic messages during cross-examination of the complainant.

The trial judge required that any application for third-party disclosure of such messages be brought under s. 278.1 of the Criminal Code prior to trial, not mid-trial.

The Court of Appeal dismissed the appeal, finding that although the trial judge made some factual errors in his ruling, his ultimate decision to foreclose the mid-trial application was justified as a proper exercise of trial-management powers.

The applicant sought certiorari to quash a ruling by a Justice of the Peace that committed the applicant to trial in the Superior Court without a preliminary inquiry.

The applicant was charged with dangerous driving causing bodily harm, an indictable offence eligible for a preliminary inquiry.

Due to miscommunication between Crown counsel and defence counsel, both parties mistakenly believed the charge was ineligible for a preliminary inquiry.

The Justice of the Peace, relying on this misinformation, transferred the matter to Superior Court without affording the applicant the statutory right to a preliminary inquiry.

The Superior Court found this constituted a breach of natural justice and jurisdictional error, granted the certiorari application, and ordered the matter returned to the Ontario Court of Justice for a preliminary inquiry.

The appellant, Rasha Al-Enzi, appealed her 11-year sentence for kidnapping with a prohibited firearm and robbery with a restricted firearm, both arising from home invasions.

The Court of Appeal reviewed the aggravating and mitigating factors considered by the sentencing judge, including the seriousness of the offences, the presence of children, and the appellant’s personal circumstances.

The appellant argued for concurrent sentences and raised concerns about the treatment of her parenthood as an aggravating factor.

The Court found no error in the sentencing judge’s exercise of discretion, held that consecutive sentences were appropriate, and dismissed the appeal.

The Court of Appeal for Ontario considered the appeals of Rushawn Anderson and Nicholas Rhoden from convictions for attempted murder and aggravated assault.

The appellants argued that the trial judge erred in admitting out-of-court statements, in his rulings on Charter violations, in instructing the jury on fabrication, and that the verdicts were unreasonable.

The majority dismissed the appeals, finding the fabrication instruction sufficient and the verdicts reasonable.

In dissent, Gomery J.A. would have allowed the appeals, finding the fabrication instruction flawed and the verdicts unreasonable, and would have substituted acquittals.

The Court of Appeal for Ontario allowed J.C.'s appeal in part, setting aside his designation as a dangerous offender and substituting a designation as a long-term offender, while upholding the determinate sentence and 10-year long-term supervision order (LTSO).

The court found that the trial judge erred by failing to consider intractability at the designation stage, as required by R. v. Boutilier, but found no reviewable error in the trial judge’s findings regarding the patterns of behaviour or assessment of the criminal record.

The Court of Appeal for Ontario dismissed the conviction and sentence appeals of Corey and Curtis Murray, who were convicted of second degree murder in the death of Trevor Seraphine.

The main issues on appeal concerned the police failure to preserve certain surveillance video evidence and the Crown’s late disclosure of the loss of this evidence.

The court found that while the loss of evidence breached the appellants’ Charter rights, the trial judge’s remedial jury instructions were adequate and a stay of proceedings was not warranted.

The court also upheld the 20-year parole ineligibility periods, finding them fit in the circumstances.

The appellant, Roger Wain Foreshaw, appealed his conviction for second-degree murder, raising six grounds of appeal.

Key issues included the trial judge's prohibition of cross-examination on a witness's record suspension, the absence of a Mayuran instruction regarding an alleged confession, the application of the Browne v. Dunn rule, alleged misstatements of evidence in the jury charge, errors in the third-party suspect instruction, and a finding of no s. 10(b) Charter breach.

The Court of Appeal dismissed the appeal, finding that while the trial judge erred in prohibiting cross-examination on the record suspension, this error did not result in a substantial wrong or miscarriage of justice.

The court upheld the trial judge's decisions on the other grounds, affirming the conviction.

The appellants, Roslyn Blake and Claire Graham, appealed their convictions, seeking a stay of proceedings due to unreasonable delay under section 11(b) of the Charter, relying on the framework established in *R. v. Jordan*.

The Court of Appeal assumed, without deciding, that Ms. Graham's net delay could exceed 30 months.

However, the court upheld the trial judge's finding in Ms. Blake's case that the complexity of the matter justified the delay beyond the presumptive ceiling, noting that this assessment was equally applicable to both co-accused appellants.

The court emphasized the deference owed to the trial judge's expertise in assessing case complexity.

The appeals were dismissed.

This addendum addresses the appropriate forum for sentencing Shawn Cargioli after the Court of Appeal vacated his first-degree murder conviction and substituted it with second-degree murder.

The Court considered arguments from both Mr. Cargioli, who sought sentencing by the Court of Appeal, and the Crown, who requested remittal to the trial court.

Despite the passage of time since the original trial and sentencing, the Court found that the trial court was the more suitable forum, particularly given the Crown's anticipation of a contested sentencing proceeding involving substantial evidence, victim impact statements, and potential "Gardiner" hearings.

The Court ordered the matter remitted to the trial court for sentencing on the second-degree murder conviction.

The Crown appealed the conditional sentence imposed on the respondent for serious firearms and drug offences, including possession of a prohibited firearm, pointing a firearm, and cocaine trafficking.

The Court of Appeal found that the sentencing judge erred in principle by misunderstanding the "true crime" characterization of the offences and by misapprehending mitigating factors.

The court emphasized that possession of a loaded handgun is a serious offence normally attracting a penitentiary term, and the mitigating factors in this case were not strong enough to warrant a conditional sentence.

The appeal was allowed, the original sentences were set aside, and a total effective sentence of four and one-half years of imprisonment was imposed.

The appellants, Shawn Cargioli, Kendell Kamal, and Famien Morrisson, appealed their murder convictions stemming from the stabbing death of Shadi Taleb during a planned robbery.

Cargioli was convicted of first-degree murder, while Kamal and Morrisson were convicted of second-degree murder.

The appeals raised various grounds, including the admissibility of expert evidence, trial judge's rulings on witness testimony, admissibility of police statements, jury instructions on after-the-fact conduct, misapprehension of evidence, the co-conspirator's exception to the hearsay rule, and jury instructions on liability for manslaughter, murder, and first-degree murder.

The Court of Appeal dismissed the appeals of Morrisson and Kamal, affirming their convictions and sentences.

For Cargioli, the court found a reversible error in the first-degree murder instruction regarding the contemporaneity of mens rea and actus reus for active participation.

Given the Crown's concession, the court substituted a conviction for second-degree murder for Cargioli and remitted the matter for sentencing.

The appellant, convicted of second-degree murder, appealed on two grounds: the constitutionality of the amended s. 232(2) of the Criminal Code regarding provocation, and alleged errors in the trial judge's jury charge on the Not Criminally Responsible (NCR) defence.

The Court of Appeal declined to rule on the constitutional question, finding it was raised tactically for the first time on appeal and lacked an air of reality.

The court also found no reversible error in the NCR instructions, clarifying that the jury was properly guided on the disjunctive nature of the s. 16 test.

The appeal was dismissed.

The appellant, Mohinder Saini, appealed his conviction for four counts of dangerous driving causing death and nine counts of dangerous driving causing bodily harm, as well as his six-year sentence.

The collision involved 17 vehicles, resulting in four fatalities and nine serious injuries.

At trial, the appellant claimed momentary inattention due to undiagnosed sleep apnea and "microsleep," but the trial judge rejected this, finding his conduct a marked departure from the standard of care.

On appeal, Saini argued the trial judge applied uneven scrutiny to defence evidence, the sentence was unfit, and his s. 14 Charter right to an interpreter was breached.

The Court of Appeal dismissed all grounds of appeal, finding no palpable or overriding error in the trial judge's assessment of evidence, the sentence was within the appropriate range, and while some interpretation errors occurred during the reading of sentencing reasons, they were not material to the trial's fairness or the appellant's ability to participate, ordering a certified translation of the reasons as a remedy.

The appellant, Ian Reid, appealed his convictions for multiple firearm-related offences, alleging Charter ss. 7 and 9 violations and insufficient reasons from the trial judge.

The Court of Appeal dismissed the appeal, affirming the trial judge's findings that the detention was not arbitrary, the police had reasonable and probable grounds for arrest based on confidential informant information, and the trial judge's reasons were sufficient.

The court also rejected the appellant's argument regarding the burden of proof on the Charter application and the trial judge's assessment of police credibility.

The applicant, Fitzroy Allen, sought bail pending appeal of his convictions for conspiracy to import cocaine, possession for the purpose of trafficking, and conspiracy to possess cocaine for the purpose of trafficking, for which he received a 7-year concurrent sentence.

The motion judge dismissed the application, finding that while the appeal was not frivolous and the applicant would surrender, his detention was necessary in the public interest.

The court balanced the enforceability of the judgment against the reviewability of the conviction, concluding that the seriousness of the crime and the weakness of the appeal grounds outweighed the reviewability interest, and a reasonable member of the public would lose confidence in the administration of justice if bail were granted.

The appellant, convicted of sexual assault and sexual exploitation, appealed his conviction.

The appeal focused on the trial judge's assessment of credibility, particularly regarding the absence of motive to fabricate.

The court found that the trial judge erred by treating the absence of evidence of motive to fabricate as a proven lack of motive, which improperly enhanced the complainants' credibility, especially since the defence did not raise the issue.

This was deemed a significant and fatal error, leading to the quashing of convictions and ordering a new trial.

The appellant, J.A., appealed convictions for second-degree murder of his daughter and attempted murder of his son.

The charges stemmed from an incident where he administered adult medication (Sleep MD, Nytol) and alcohol to his young children (ages 6 and 7), resulting in his daughter's death and his son's survival, as part of a failed murder-suicide attempt.

The appeal raised five grounds, primarily challenging the trial judge's "common-sense inference" instructions regarding intent, the failure to relate evidence to essential issues, and other jury charge errors.

The Court of Appeal dismissed the appeal, finding the common-sense inference instruction proper as death and serious bodily harm were predictable consequences of the appellant's actions, and the toxicology evidence did not dispel this inference.

The court also found no reversible error in the trial judge's instructions on evidence relevance to intent.

The appellant, Adonay Zekarias, appealed his conviction for second-degree murder and committing an indignity to a dead body.

The appeal challenged the trial judge's decisions regarding the admissibility of prior discreditable conduct evidence to establish motive, the reliance on inferences for motive, and the use of after-the-fact conduct to prove intent.

The appellant also raised Charter breaches but conceded them given the outcome.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's reasoning on motive or intent, and adjourned the sentence appeal.

The appellant, B.G., appealed convictions for sexual interference and sexual assault.

The main issue was whether Crown counsel invited the jury to rely on impermissible racial or cultural stereotyping during cross-examination of defence witnesses and in closing arguments.

The court found that the Crown's questioning and address created a risk of the jury applying negative stereotypes about Indian culture, particularly regarding women's agency and truthfulness, which was not supported by evidence.

The absence of a specific cautionary instruction from the trial judge resulted in an unfair trial.

The appeal was allowed, convictions set aside, and a new trial ordered.

Shane Wood appealed his conviction for first-degree murder, arson, and offering an indignity to a body.

The appeal raised three grounds: the trial judge's failure to admit defence evidence (hearsay statements of Kim Rolph-Smith), improper jury instructions on after-the-fact conduct, and inadequate handling of juror misconduct.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's exclusion of the hearsay evidence due to lack of reliability, no fatal omissions in the jury instructions on after-the-fact conduct, and that a juror inquiry was not warranted given the nature of the juror's note and the trial judge's corrective instruction.